Dear
Friends,
I am
writing to respond to a posting on Mr. Dorman’s Big Mountain List site
dated December 1, 2000 from by Mr. Zion of the “Navajo Working Group
on Human Rights”.
I have
also just returned from the 6th UN Intersessional Working
Group on the Draft Declaration for the Rights of Indigenous Peoples in
Geneva, which took place from November 20th to December 1, 2000. As
you know, IITC has been involved in this process since the first
discussions about the Declaration began in the newly formed Working
Group on Indigenous Populations in 1982.
I fully
support the right of any participant, Indigenous or non-Indigenous,
long time or first time participant in this process, to voice their
impressions and opinions. But I also believe that some of Mr. Zion’s
comments warrant a response reflecting a different point of view for
those that are following this discussion.
Mr. Zion
referred to “word for word purists”, I think meaning the collective
position of Indigenous Peoples supporting adoption of the current
text of the Declaration without changes, amendments or deletions.
This position is not the product of the “intransigence” to which he
refers. It is based on principle, strategic analysis and the mandate
of our communities, as well as the experiences of the hundreds of
Indigenous Peoples who participated in the Declaration’s drafting
process, which began more than 17 years ago.
This
drafting process, which took twelve years in the UN Working Group on
Indigenous Populations, culminated in the current texts' adoption by
the WGIP and the UN Subcommission for the Prevention of Discrimination
and Protection of Minorities in 1994. Indigenous Peoples as well as
states and the expert members of the WGIP participated fully in the
debates and negotiations over its wording. Every effort was made
during this process to accommodate views of the UN experts, states as
well as Indigenous Peoples as we fought for a strong Declaration,
which could also eventually be adopted by the UN General Assembly.
States had the opportunity to propose wording at that time, and many
Indigenous Peoples felt that more than sufficient compromise was made
then on their part in order to reach agreement.
The
resulting Declaration has been not only adopted by these two UN
bodies, but by many hundreds of Indigenous Peoples, Nations,
organizations and grass roots communities around the world who have
endorsed the current text as the “minimum standard” necessary for
insuring full international recognition of the essential rights of
Indigenous Peoples. Indigenous Peoples feel strongly that we cannot
compromise any further if it means considering changes that would
diminish, limit or qualify the essential, broad rights the Declaration
currently recognizes. But it seems that some states thought that if
they bided their time until Indigenous Peoples were out of the process
(which has not happened yet), they would be able to dilute and weaken
the text with or without our agreement. We have made a unified stand
to prevent this from occurring so far, and we will continue to hold
the line.
It should
be said that in defending the current text as the minimum standard
required to protect, defend and recognize the fundamental rights of
Indigenous Peoples internationally, the many representative Indigenous
Nations and organizations participating in the process are following
the direct mandate of their members, constituents, chiefs and
traditional leadership. This is certainly the case with IITC. At
both the 1999 IITC Conference in Bear Butte South Dakota and the 2000
IITC Conference in Xela Guatemala, IITC’s membership representing
Indigenous communities, tribes, Nations and traditional societies from
Alaska to Argentina to New Zealand affirmed by consensus their support
for the current text with no amendments or changes. IITC, along with
hundreds of other organizations and Peoples, is committed to defending
it, despite pressure by some governments to accept language that would
qualify or limit the essential rights it now recognizes in the name of
making “progress” towards its adoption.
But this
is no legalistic “word game”. It is not a game at all for us. It is
a critical struggle for the rights and survival of our children and
our future generations, at least on one front (and of course there are
many other fronts of the struggle that just as important, especially
on the grass-roots level).
I also do
not agree with Mr. Zion that the majority of Indigenous Peoples
representatives who are not lawyers are confused by these debates at
the UN. As Indigenous Peoples we (and I speak for the non-lawyers
among us) understand very well that words have power, and that we are
addressing complex situations that have been more than 500 years in
the making.
We also
understand that many countries want to maintain the status quo, and
will put countless barriers up with words or otherwise if they feel
that business as usual is being threatened. But many others states
seem to realize that this work for the UN Declaration is an historic
opportunity to build new relationships with Indigenous Peoples, based
on mutual respect. They also seem to be struggling for the best way
to express this, and to both recognize and overcome the brutality and
injustice we have suffered at their hands. It is not easy but we all
know it must be done.
Despite
the many difficulties and obstacles, and our eagerness (and sometime
impatience) for the rights of our Peoples to finally be fully
recognized and respected around the world, most of us accept that it
takes time to unravel the attitudes of colonization and racism which
so many states still maintain. We do see some signs of positive
progress in statements by some countries, which continue to encourage
us. The discussions about the principles and rights encompassed by
the Declaration, with this level of participation by Indigenous
Peoples, are historic in and of themselves. Such a process has never
been seen before at the United Nations.
We have
also seen that our unified Indigenous position calling for adoption of
the current text, endorsed collectively by the Indigenous caucus
representing hundreds of Indigenous organizations and Nations working
together at the Intersessional Working Group each year, has had the
effect of moving the position of many states forward towards
acceptance of the current text. It was notable this year that a key
element on which states have not been able to agree in the past, the
unqualified use of the term “Indigenous Peoples” throughout the
Declaration, had a much greater level of support this year. In fact
only a handful of states still expressed their opposition (the US
among them).
We firmly
believe that maintaining our collective, principled position in
support of the current text is moving the discussions forward towards
the eventual adoption of the current Declaration without changes that
diminish the rights it now affirms for our Peoples. It also provides
us with a firm basis for rejection of some state’s attempts to make
changes that will weaken or undermine the integrity of the current
text.
One
example of the ongoing state attempts to diminish the rights in the
current text which occurred this year mentioned by Mr. Zion. This was
the suggestion by a few governments (including the US) that the term
"applicable” should be inserted to Article 1 of the Declaration.
The
collective position of the Indigenous caucus, which represents the
Indigenous participants from all regions of the world, is that the
addition of this term would limit international protection for
Indigenous Peoples to only those laws or conventions which have
actually been ratified by the individual states in which they live.
For example, since the United States has not ratified the
International Covenant on Economic, Social and Cultural Rights, their
position would be that this instrument is not “applicable “ in the US
and therefore Indigenous Peoples currently living in the US would not
be eligible to enjoy the very important rights affirmed in this
Covenant. We must oppose such attempts to limit or “domesticate”
(bring under the sole discretion of the individual countries) our full
enjoyment of internationally recognized rights.
Our
position is that Indigenous Peoples should be fully protected by the
entire range of human rights law, including customary international
law, despite the status of their ratification by individual states.
This broad scope is contained in the current text of Article 1. We are
working to affirm full international protections in the Declaration,
in part because the protections afforded by the countries in which we
live is not sufficient. In many cases, domestic laws and practices
work directly against us, as we well know. That is why the consensus
position has been to reject the insertion of the term “applicable”
into Article 1 which would weaken it, and limit the broad, clear and
comprehensive rights set out in the current text of this Article:
“Indigenous Peoples have the right to the full and effective enjoyment
of all human rights and fundamental freedoms recognized in the Charter
of the United Nations, the Universal Declaration of Human Rights and
international human rights law”.
Once
again, I want to affirm that Mr. Zion has the right to voice his own
views. But he is right in assessing the dismay and shock of many
members of the Indigenous caucus to his individual response during a
UN session addressing the Declaration for the Rights of Indigenous
Peoples. This Declaration will impact all of our Peoples, now and in
future generations, and represents many years of consistent effort and
collective work by Indigenous Peoples. It is rare and somewhat
surprising that a non-Indigenous individual would participate in the
discussion in such as way as to take an opposing view from the
Indigenous consensus developed over many years of participation.
Perhaps he was caught off guard.
I do not
want to be in the position of arguing a point with any individual who
participated in this session. I just want to offer another point of
view, shared by the vast majority of Indigenous organizations and
Nations currently participating in this process. I hope it has been
helpful, and that both Indigenous and non-Indigenous Peoples will
continue to back us in calling for governments to support the adoption
of the current text of the Draft Declaration for the Rights of
Indigenous Peoples without further delay or attempts to diminish its
content.
Thank you
for your time in reading and circulating this letter.
For all
my relations, Andrea Carmen
Executive
Director, International Indian Treaty Council
December
6th, 2000
Delivered-To:
redorman@theofficenet.com
From:
Kc4behopi@aol.com
Date: Fri, 1 Dec 2000 17:53:47 EST
Subject: Fwd: Geneva Day Five, Six and more
To:
redorman@theofficenet.com X-Mailer: Windows AOL sub 126
Return-Path: <beatriz@ecouncil.ac.cr>
Received: from
rly-xa05.mx.aol.com (rly-xa05.mail.aol.com [172.20.105.74]) by
air-xa04.mail.aol.com (v77.14) with ESMTP; Fri, 01 Dec 2000 13:07:09
-0500 Received: from ecouncil.ac.cr ([196.40.1.51]) by
rly-xa05.mx.aol.com (v76_r1.19) with ESMTP; Fri, 01 Dec 2000 13:06:51
-0500 Received: from bschulthess [196.40.53.135] by ecouncil.ac.cr
[196.40.1.51] with SMTP (MDaemon.v3.1.0.R) for <kc4behopi@aol.com>;
Fri,
01 Dec 2000 12:06:01 -0600 From: "Beatriz Schulthess"
<beatriz@ecouncil.ac.cr>
To: "Saquiribal" <saqribal@racsa.co.cr>
Subject: Geneva Day Five, Six and more Date: Fri, 1 Dec 2000 12:15:39
-0600 Message-ID: <NDBBLBODELHFOFKNDJHJIEBMCFAA.beatriz@ecouncil.ac.cr>
MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1"
Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal)
X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook IMO, Build
9.0.2416 (9.0.2910.0) X-MimeOLE: Produced By Microsoft MimeOLE
V5.00.3018.1300 Importance: Normal X-MDaemon-Deliver-To:
kc4behopi@aol.com X-Return-Path:
beatriz@ecouncil.ac.cr X-MDRcpt-To:
zalabata@col3.telecom.com.co X-MDRemoteIP: 196.40.53.135
Solamente en Ingles
Received from:
JZion@aol.com Navajo Working Group on Human Rights via
Native News
Day 5
Friday's morning discussions in the working group focused on article
44
of the draft declaration, which simply provides that nothing in the
Declaration can be read to imply that any State, group or person can
engage in any activity or perform any act contrary to the UN Charter.
Most of the state comments were to the effect that they could accept
this provision as written. However, there were indigenous comments to
the effect that there was consensus on accepting the article, and if
the
states could not accept it, that meant that they intended to violate
the
UN Charter. Several speakers kept raising the issue of "peoples," and
the chair said that we needed to make progress on "peoples" "without
having to make a decision on the substance." He proposed that there
should be an "informal informal" meeting to talk about the issue and
move toward a solution later.
The United States said it supported article 44 in general.
The chair brought up a problem that the working text is in English,
and
the translation varies in French and Spanish. He said he felt that
the
"vast majority" was in favor of the English text being modified to
reflect the meaning in Spanisn and French, but that was not clear.
The
chair had been asked the last time to arrange for a better
translation,
but that was not done. Was this a test of the indigenous caucus'
insistence that the Declaration be adopted word-for-word in the
original?
Discussions on article 1 began in the afternoon. A state "position
paper" on the article had peoples in brackets -[peoples]- and there
was
a proposal that the word "applicable" should modify either [law] or
[instruments]. The article says that indigenous peoples should fully
enjly all human rights and fundamental freedoms recognized in the UN
Charter, the Universal Declaration of Human Rights and international
human rights "law." The United States takes the position that the
word
"instruments" should take the place of "law." That of course refers
to
the international covenants adopted to implement the Universal
Declaration of Human Rights following 1948. The US says, in passing,
that "instruments" includes international customary law, which of
course
is not quite the case.
When the indigenous caucus insisted on knowing why the word
"applicable"
was proposed, it said it would be brave and rose to explan that it
wants
"applicable" to deal with the situation where it may not have ratified
a
human rights covenant. I rose to say that the word "applicable" was
usually implied in law anyway, but that if you use "instruments," that
would lock out international customary law. I pointed out that most
international law prior to the Universal Declaration was international
customary law, and that it should not be locked out.
I then put my foot in my mouth as far as the indigenous caucus was
concerned. The chair asked if I would accept "applicable" if it
modified
"laws." I said that so long as applicable modified "laws" and not
"instruments," that was acceptable. I did not say I accepted an
amendment to the article. That got me into trouble with the
word-for-word purists. The Australian delegate came up to me to say
that it has no problem with "laws" and that international customary
law
must still apply (implying it did not agree with the US position).
At end, we are playing word games, and the process is far from over.
While there is a lot of fuss about the brackets, it is clear that the
negotiation of the actual words in the declaration is a long way off.
Many governments rose to say that they had no problem with the article
as it was written, and that they could accept "peoples." I thought I
saw Michael Dennis turn red as the states rose, one by one, to say
that
they accepted the article as is. He privately said that he wasn't
really
bothered, because many states have not spoken, and many agree on the
issue of "peoples" and that there should be no collective rights
recognized.
Following the debate, the Working Group broke for the weekend.
Day six
As before, when the session began on Monday, there was a state
"position
paper." This time, it was on article 2, which has to do with the
right
of indigenous peoples to be free and equal with everyone else in
dignity
and rights, and the additional right to be free of any kind of adverse
discrimination based on indigenous origin or identity. Peoples was
bracketed again, as was adverse, and there was new language which said
that "This does not preclude special measures as contemplated in
article
1.4 of the International Convention for the Elimination of All Forms
of
Racial Discrimination. Other states believed that the article should
more closely track article 2(1) of the Universal Declaration of Human
Rights. There was
a lengthy explanatory note on "peoples" which largely had the US
position.
The debate was most curious. Although the "peoples" bracket was in
the
text, the chair announced there would be no discussion of that issue.
Several states asked why "adverse" was in the section. I think it is
unusual to see it, because it assumed that all discrimination is
indeed
"adverse," and you don't see it in most US anti-discrimination
legislation. Several states arose to say that they would like to see
some language in favor of affirmative action, and there was a lot of
discussion of "positive" discrimination, "negative" discrimination and
affirmative action.
I wondered as I listened to the states supporting affirmative action
language if that wasn't a reaction to the situation in the US where
affirmative action is under attack.
Ken Deer said that he looked back to when the document was being
drafted
and remembered that the word "adverse" was the product of a lack of
trust of the states; the indigenous representatives did not trust the
states, so they insisted upon the word.
At the end of the day, the state comments were to the effect that the
article should more closely track the Universal Declaration on Human
Rights and international anti-discrimination covenants. Were these
comments real? Or are they a test of the insistence of the indigenous
caucus that the declaration be adopted word for word? There were
several peevish exchanges between indigenous representatives and the
chair over the continued addition of an "explanatory note," not
subject
to debate, over peoples, and the chair lectured on brackets and what
would be in the final report as far as state comments on the language.
At the end of the day, the chair announced that we would finish
articles
12, 13 and 14 and that there would be one meeting on Wednesday for
"informal consultations" between the states and the indigenous
groups.
In the meantime, the states were to caucus on Monday evening and
Tuesday
morning to write up their position papers on the remaining articles.
The States -them-giving their written positions to the Indigenous
Caucus
- us. The divide continues.
The anger and bitterness are obvious. The indigenous groups are
frustrated over the lack of progress and inability to bring closure to
the group rights issue. The states are showing their frustration over
the "word for word" stance of the indigenous caucus. It is obvious to
me that there are rules of the game, which the state diplomats know
very
well, have not been taught to the indigenous representatives.
There was an informal meeting with the State Department folks on
Friday
where there was a lot of frustration over the US position. Michael
Dennis explained that he had his instructions from Washington, and
that
while he had some flexibility on words, he could not go against the
Washington position. I said that I know that most federal agencies use
the principle of collegiality to come to a collective decision, but
that
it is hard for us to get at the heart of things if we do not know who
is
involved in that decision. One state official seemed surprised, and
said that the information on who is involved is public information.
She
named Frank Lloyd of "Global Affairs," Eric Schwartz of the National
Security Council, and the people from Interior and the Office of
Tribal
Justice in the Justice Department. We had asked for that information
from Gare Smith in prior years, only to be blown off.
As I write early on Tuesday, I'm wondering what in the heck we are
doing
here. We know the US position from a short position paper its folks
gave us, so we know that the US position is legalistic. At this
point,
we are playing lawyer word games. The non-lawyers in the indigenous
caucus are at a loss about what it is all about. They thought they
came
to Geneva to have progressive discussions of human rights, and instead
they are puzzling at "applicable," "adverse" and US quibbling over the
implications of property rights and public safety in enjoying
religious
sites, intellectual property rights to indigenous names, and similar
small issues. The US wants to narrow the scope of protections and
water
down language which requires affirmative state action (different from
"affirmative action") and replace obligations to enforce the
Declaration
with "consultation" and "where we can do it" kinds of language.
Following a report on today's session (which we will be late in
attending because of writing these updates), there will be no more
reports from Geneva by the Navajo Working Group for Human Rights. We
have had enough, and it is obvious that as this process drags on and
on,
we had better do our homework. It makes no sense to come here to fight
with people whose instructions are set in stone, and we have a lot of
work to do at home before any future session. Elsie RedBird and I are
going to spend Wednesday and Thursday playing tourists before we
return.
This is not the end of these postings. I intend to review my notes
and
do some analysis when I get home. Again, we can thank the UN and the
states for "turning a simple transaction into a bizarre dream
sequence."
Elsie went over to the old League of Nations chambers with Shirley
Hill
Witt to get a sense and a feel of Eleanor Roosevelt negotiating the
Universal Declaration of Human Rights. Where is that US spirit of
leadership on human rights? Where are the high ideals of the UN in
protecting the targets of human rights violations? Why isn't the US
rhetoric on human rights translated into positive support of the
Declaration rather than legalistic quibbling? What is the National
Security Council's problem with the Declaration and group rights and
its
fear of an unnamed indigenous group in some remote part of the world
rising up and using the Declaration as support?
The indigenous caucus is in a difficult position by insisting upon
utterly no changes, and the state bitterness over such seeming
intransigence is a problem. We have not been told the customary rules
of the game, and the UN people don't seem to recognize that the
failure
to do that is creating frustration and divide.
I assume that Net Warriors from around the world will read this. All
I
can tell you after our days here is that I don't think we have done
our
homework. We haven't targeted the people at home to get off the dime,
and we haven't gone to the media. Where is the news over US
stonewalling and legalistics? Is the Declaration a priority for the US
human rights agenda and if not, why not? Is it truly a priority for
indigenous peoples in terms of the time and energy we are willing to
devote to lobbying at home? We need to ask and answer these
questions,
or it is clear that the process of slow movement and quibbling over
minor issues will continue until either some kind of declaration is
passed many years from now or the UN Commission on Human Rights stops
funding the Working Group (a possibility I have heard from more than
one
source). Another option might be the Commission as a whole taking
charge of the Declaration, and if that happens, then we will all have
to
get down to the process of taking charge at home.
More
I suppose it should be natural that when the Working Group got down to
talking about issues affecting private property rights and state
obligations concerning property that any support for the declaration
"as
is" would erode. Article 13, which speaks to the right of indigenous
peoples to access to sacred sites for ceremonies in private and the
return of property prompted quite a few brackets. The United States
was
concerned with private property and "safety" issues regarding sacred
sites, likely having in mind things such as the closure of Devil's
Tower
in Wyoming and the litigation surrounding the closure; Zuni access to
their sacred site in Arizona; and issues having to do with sites on
private land or accessed crossing private land. Some states asked
about
the "free and informed consent" language about the taking of property,
and some did not want the section to be retroactive (i.e. apply to the
past; they want it effective only in the future). Some asked if
"restitution" meant paying money or whether it simply meant the return
of property. There was discussion of intellectual property rights
(article 14) and weakening the state obligation in the event of
violations.
The process is winding down, and people are tired. The session
started
late on Tuesday in the morning, and the afternoon session was
delayed.
At the end, the chair announced that there were speakers who were not
heard, and he moved their presentations to Thursday morning. He
announced that there would be an "informal-informal" session (whatever
that is) on Wednesday morning, with an indigenous co-chair, but he did
not announce the subject. Wednesday afternoon was set aside for
"consultations" with the Indigenous Caucus and the states. The
Working
Group is to end its proceedings this morning, with discussions of the
remaining articles.
The United States held a reception on Tuesday evening, which was
interesting, and rather than cover the discussions I had with State
Department people, I will leave that for a later report; probably
next
week. There are two "big" issues Michael Dennis has which I think
will
deserve some discussion and input from all of you.
This will close the reports from Geneva, but there will be commentary
and more discussion when we return to the U.S. If we truly want the
Declaration, there are things to be done.
=========================================
Hi,
I'm doing most of my holiday shopping online this year - it's so nice
not to have to go to the mall... I hope you're able to do the same.
If you're curious, check out the gifts at this site - they have gifts
for kids, for grandparents, for
food-lovers and even the hard-to-shop for ones...
http://members.quinstreet.com/market/index.jsp?AFID=43160
--Bob Dorman
PS Hope you don't mind, but I'll get a referral bonus if you buy -
don't worry, you don't pay extra!
.........................................
Please visit
http://www.theofficenet.com/~redorman/pagea~1.htm for more
background on the Big Mountain relocation issue.
To post to the list, email your message to
redorman@theofficenet.com.
To subscribe, send an email to:
BIGMTLIST-subscribe@topica.com.
To unsubscribe, send an email to:
BIGMTLIST-unsubscribe@topica.com
___________________________________________________________
T O P I C A
http://www.topica.com/t/17
Newsletters, Tips and Discussions on Your Favorite Topics
